Your Right to Remain Silent in Massachusetts

The right to remain silent is a person’s right not to be compelled to give evidence against themselves. Two constitutional provisions protect the right to remain silent in Massachusetts. The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself.

Article 12 of the Massachusetts Declaration of Rights provides that no person shall be compelled to “accuse or furnish evidence against himself.” The Supreme Judicial Court has held that Article 12 gives broader protection than the Fifth Amendment in several settings that arise in actual criminal cases.

The right to remain silent protects a person differently at a roadside stop, in a police station, at a criminal trial, and at a restraining order hearing. This page explains when the right applies, how a person invokes the right, what a court may and may not do with a person’s decision to stay silent, and how the rules differ from one proceeding to another.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and litigates the admissibility of statements in the District Court, the Boston Municipal Court, and the Superior Court.

The Two Constitutional Sources

The Fifth Amendment and Article 12 both protect against compelled self-incrimination. Defense counsel raises the two provisions together. Defense counsel must raise Article 12 expressly in the trial court to preserve the state ground for appeal on any issue where the Supreme Judicial Court has read Article 12 more broadly than the Fifth Amendment. The differences between Article 12 and the Fifth Amendment are set out in the sections below on prearrest silence, the evidence derived from an unwarned statement, an attorney’s call to the police station, juveniles, and device passcodes.

Having the Right and Receiving Miranda Warnings

The privilege against self-incrimination exists whether or not anyone warns a person of the privilege. Miranda v. Arizona, 384 U.S. 436 (1966), did not create the right. Under the Miranda rule, the police must warn a person in custody of the right before questioning that person, so that the Commonwealth can later show that any waiver was knowing and voluntary.

A statement taken during custodial interrogation without the warnings is subject to suppression, but the statement is not automatically inadmissible in every use. A judge does not suppress a statement simply because an officer failed to recite a warning in a setting where no warning was required.

Conversely, a statement made when a person is not in custody generally requires no warnings at all. Such a statement is admissible in evidence in full. The great majority of damaging statements in Massachusetts cases are made by people who are not in custody, in ordinary conversation at the roadside or the doorstep, before any arrest.

Custody and Interrogation

Miranda warnings are required only where both custody and interrogation are present.

Custody does not require a formal arrest. Custody exists where a reasonable person in the suspect’s position would not have felt free to leave. A person questioned in the back of a cruiser or at a station house can be in custody before anyone says the words “you are under arrest.”

Interrogation means express questioning or its functional equivalent, meaning words or conduct that the police should know are reasonably likely to produce an incriminating response. A spontaneous statement that no one asked for is not the product of interrogation.

Two narrow categories of police questions are exempt from the Miranda warning requirement. Routine booking questions, such as name, address, and date of birth, asked to process an arrest are generally exempt. Pennsylvania v. Muniz, 496 U.S. 582 (1990). Officers who face an immediate threat to public safety may ask a limited question, such as the location of a weapon, before warning the suspect. New York v. Quarles, 467 U.S. 649 (1984). Both categories are narrow. Police questioning that goes past booking logistics or a genuine emergency is interrogation.

A separate limit applies to questions about immigration or citizenship status. Under M.G.L. c. 147, § 64, a Massachusetts officer may ask about status only with an articulable, case-specific reason to believe that the person’s status is directly material to an element of a specific offense. The offense must be a human trafficking offense under M.G.L. c. 265, §§ 50 to 52 or a Massachusetts felony under investigation.

The statute states that status is not directly material to credibility or general information gathering. A person should not answer status questions or give false information. The right to remain silent applies to questions about immigration or citizenship status.

Voluntary and Noncustodial Conversations With Police

A person who is not in custody may decline to speak with the police. At a motor vehicle stop a driver must produce a license and registration, and in some encounters a person must give a name. A driver who produces a license and registration does not waive any right. Every question beyond identification is investigative. No one is required to answer an investigative question.

In operating under the influence cases, the statements that hurt the driver most are given at the roadside before any arrest, in answer to questions about where the driver has been and what the driver has had to drink. The driver’s roadside answers are admissible at trial. The driver was not required to answer any of those questions. What the police may and may not do at the stop itself is covered at Massachusetts traffic stops, exit orders, and pretext searches.

The firm’s page on what to do when under criminal investigation before charges are filed explains how a lawyer responds when a detective asks for an interview. The page also explains how the lawyer judges whether the questioning is voluntary and how the lawyer advises a person who has not been charged.

Invoking the Right

During police questioning a person must assert the right to remain silent clearly. Under Berghuis v. Thompkins, 560 U.S. 370 (2010), a suspect who wishes to rely on the privilege must invoke the privilege unambiguously. Sitting silent through an interrogation is not by itself an invocation.

A person may say plainly that they are invoking the right to remain silent and want to speak with a lawyer before answering questions, and then stop answering investigative questions. The person does not need to explain the decision. Each further sentence the person says about the case creates the risk that a court will treat the invocation as abandoned.

Silence and Counsel Are Different Invocations

Different rules apply depending on whether a person invokes the right to remain silent or asks for a lawyer.

The police must scrupulously honor the decision of a person in custody to invoke the right to remain silent. Questioning must stop immediately. The police are not permanently barred from approaching that person again. A judge decides whether the police scrupulously honored the invocation by considering factors such as whether questioning stopped immediately, whether a significant period passed, whether the police gave fresh Miranda warnings, and whether the new questioning concerned a different crime. Commonwealth v. Taylor, 374 Mass. 426 (1978); Commonwealth v. Smith, 473 Mass. 798 (2016).

A judge decides on the totality of the circumstances whether the invocation was clear enough to require the police to honor it. The judge asks whether the person clearly and unequivocally expressed an unwillingness to continue. Commonwealth v. Leahy, 445 Mass. 481 (2005). A request for time to think is not necessarily an invocation. The judge decides from the surrounding circumstances whether such a request was an invocation. A judge treats a statement such as a flat refusal to talk further differently from a request for time to think.

Continued efforts to persuade the person to speak, a brief interruption rather than a meaningful break, and renewed questioning about the same offense all weigh heavily against a finding that the invocation was scrupulously honored. Commonwealth v. Howard, 469 Mass. 721 (2014).

A stricter rule applies when a person in custody clearly requests a lawyer. All interrogation must cease and may not resume until counsel has been made available, unless the suspect reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477 (1981). The obligation of the police after a request for counsel is distinct from, and more demanding than, the obligation of the police after an invocation of silence. Commonwealth v. Lopes, 455 Mass. 147 (2009). A person in custody who wants a lawyer should therefore ask for a lawyer in plain words and then say nothing more.

Voluntariness as a Separate Question

Even a warned statement is inadmissible if it was not voluntary. Massachusetts follows the humane practice rule. Under the humane practice rule, the Commonwealth must prove beyond a reasonable doubt that a statement was voluntary when voluntariness is genuinely at issue. The judge instructs the jury to disregard the statement unless the jury also finds beyond a reasonable doubt that the statement was voluntary. Commonwealth v. Tavares, 385 Mass. 140 (1982). The federal standard is a preponderance of the evidence.

Age, intelligence, intoxication, mental impairment, and prior experience with the police all bear on the question whether a statement was voluntary. Massachusetts adds a further safeguard. Under Commonwealth v. DiGiambattista, 442 Mass. 423 (2004), a defendant is entitled on request to a jury instruction when the Commonwealth offers a statement from a custodial interrogation that was not recorded. The instruction tells the jury that the Supreme Judicial Court prefers such interrogations to be recorded and that the jury should weigh an unrecorded statement with particular care.

Prearrest Silence

A person who has not been arrested has no legal duty to come forward, to report a crime, or to offer an explanation to the police. Commonwealth v. Nickerson, 386 Mass. 54, 60 (1982). At trial, the prosecutor may not use a defendant’s prearrest silence, or the defendant’s refusal of a police request for an interview, as evidence of guilt or as evidence of consciousness of guilt. Commonwealth v. Pierre, 486 Mass. 418, 433 (2020).

The Appeals Court applied the rule against using prearrest silence as evidence of guilt in Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 653-654 (2008). In Irwin, the Appeals Court ordered a new trial because the prosecutor focused on the defendant’s refusal to take part in a prearrest interview with a detective.

Federal law permits a prosecutor to impeach a testifying defendant with prearrest silence. Jenkins v. Anderson, 447 U.S. 231, 238-241 (1980). Massachusetts law allows a prosecutor to impeach a testifying defendant with prearrest silence only in narrow circumstances. A prosecutor may question a testifying defendant about prearrest silence only after showing that it would have been natural for the defendant to come forward and tell the police the account the defendant gives at trial.

Nickerson, 386 Mass. at 62. Commonwealth v. Gardner, 479 Mass. 764, 768-770 (2018). It is not natural for a person to go to the police with an account that would implicate that person in the crime. Gardner, 479 Mass. at 772. A judge who admits evidence of prearrest silence should, on request, instruct the jury to consider the silence only on the defendant’s credibility. Nickerson, 386 Mass. at 62.

Evidence Derived From an Unwarned Statement

Federal law permits the government in some situations to use physical evidence discovered as a result of an unwarned but voluntary statement. Under Commonwealth v. Martin, 444 Mass. 213 (2005), physical evidence derived from a statement obtained in violation of Miranda is presumptively excludable at trial under a Massachusetts common-law rule adopted to safeguard the broader protections of Article 12. A judge may therefore be required to suppress not only the words of an unwarned statement but also a weapon or drugs that officers found because of the statement.

An Attorney’s Call to the Police Station

Massachusetts law imposes a duty on the police that has no counterpart in federal law. Under Commonwealth v. Mavredakis, 430 Mass. 848 (2000), where an attorney contacts the police station and asks to speak with a suspect being held, the police must promptly inform the suspect of the call.

A suspect’s waiver of the right to counsel is not knowing and voluntary if the police failed to tell the suspect about the attorney’s call. A judge may suppress the statement that the suspect made after that waiver. A family member’s first step after an arrest should be to call a defense lawyer, because the police must tell the suspect about the lawyer’s call to the station.

Juveniles and the Interested Adult Rule

Massachusetts protects young people more than the federal Constitution requires. Under Commonwealth v. A Juvenile, 389 Mass. 128 (1983), a juvenile who has turned fourteen must be given a genuine opportunity for a meaningful consultation with a parent, an interested adult, or an attorney before a waiver is valid. For a juvenile under fourteen, no waiver is valid unless an interested adult was present and consulted. The interested adult must understand the warnings and must not have an interest in the case that conflicts with the child’s.

The interested adult rule covers every youth under eighteen. For interrogations conducted on or after April 9, 2015, the interested adult rule applies to seventeen year olds as well. For a seventeen year old questioned on or after April 9, 2015, the Commonwealth must also meet the heightened burden of establishing a knowing and intelligent waiver under the juvenile framework. Commonwealth v. Smith, 471 Mass. 161 (2015).

The Supreme Judicial Court extended the interested adult rule to seventeen year olds under the court’s supervisory authority. The extension does not apply to an interrogation that took place before April 9, 2015. For a seventeen-year-old, the rule the judge applies therefore depends on the date of the questioning.

Statements to People Who Are Not the Police

The privilege restrains compulsion by the government. The privilege does not make every conversation private.

Statements to an employer, a school administrator, a licensing board investigator, a coworker, or a family member are ordinarily admissible against the person who made them. The Commonwealth can summon the people who heard those statements as witnesses. The Commonwealth routinely reviews recorded jail calls. A defendant who apologizes or explains what happened in a recorded call can give the Commonwealth evidence that the Commonwealth did not otherwise have. In a domestic violence case, a defendant who contacts the complaining witness can face a separate charge for intimidation of a witness.

In a disciplinary or Title IX proceeding, a university applies its own standard of evidence and its own rules about what a respondent’s silence means. A student who explains to a dean what happened in order to protect a housing assignment may therefore give the district attorney a recorded account. Defense counsel coordinates the criminal case and the university proceeding so that protecting the student in one proceeding does not damage the student’s position in the other. See college and university student criminal defense.

Testimony in a Related Civil Proceeding

The rule about a refusal to testify in a civil proceeding differs from the rule in a criminal case.

In the criminal case, no adverse inference may be drawn from a defendant’s decision not to testify. Griffin v. California, 380 U.S. 609 (1965). The judge instructs the jury not to draw any inference from the defendant’s decision not to testify. A prosecutor’s comment on that decision is improper.

A hearing on a 209A restraining order (abuse prevention order) or a 258E harassment prevention order is a civil proceeding. The rule about a refusal to testify is different at that civil hearing. In a civil case the factfinder may draw an adverse inference against a party who invokes the privilege and declines to testify. Baxter v. Palmigiano, 425 U.S. 308 (1976). Massachusetts applies the civil adverse inference rule to abuse prevention proceedings.

A judge may consider a defendant’s refusal to testify as evidence adverse to that defendant, even while the criminal case is still pending. Frizado v. Frizado, 420 Mass. 592, 596 (1995); Mass. G. Evid. § 525. The inference alone cannot meet the plaintiff’s burden.

Different rules apply to a criminal defendant, to a party to a civil case, and to a witness who is not a party. A criminal defendant may decline to testify. The jury may draw no inference against the defendant from that decision. A party to a civil case may invoke the privilege, but the judge may weigh the invocation against the party. A witness who is not a party invokes the privilege question by question. The inference rules that apply to a party do not apply in the same way to a witness who is not a party.

The extension hearing on a 209A restraining order is frequently held on the same day and in the same courthouse as the criminal arraignment. A same-day hearing takes place before defense counsel has the police report, the recording of the call to the police, or the plaintiff’s affidavit.

A defendant who testifies at the extension hearing gives sworn testimony that the prosecutor may use in the criminal case. Declining to testify may result in an order that removes a person from their home, separates them from their children, requires surrender of firearms and any license to carry, and appears in the statewide registry that courts and police consult.

Testifying and declining to testify both create risk for the defendant. The defendant decides whether to testify with counsel who examines both proceedings together. The choice whether to testify is treated in detail at testifying at a 209A restraining order hearing while the criminal case is pending. The civil order itself is explained at Massachusetts 209A restraining orders (abuse prevention orders) and on the domestic violence defense page.

The Decision Not to Testify at the Criminal Trial

A defendant cannot be compelled to take the stand. The choice belongs to the defendant, who makes it with counsel. The judge instructs the jury that the jury may draw no inference from the defendant’s decision not to testify. Griffin v. California, 380 U.S. 609 (1965). The decision depends on the strength of the Commonwealth’s evidence and the risk of cross-examination, including the risk that the defendant’s testimony will make admissible prior statements that were otherwise excluded.

A witness before a grand jury is in a different position from a defendant at trial and may invoke the privilege question by question. A person who receives a grand jury subpoena or is told they are a target should not appear without counsel. The witness testifies under oath, without the participation of defense counsel. The Commonwealth can later use the witness’s grand jury testimony to impeach the witness or to charge the witness with a crime.

Passcodes, Biometrics, and Digital Evidence

The privilege protects testimonial evidence, meaning communications that reveal the contents of a person’s mind. The privilege does not protect physical or real evidence. A person may be required to appear in a lineup or to provide fingerprints, a blood sample, a handwriting exemplar, or a voice exemplar. Commonwealth v. Brennan, 386 Mass. 772 (1982); Commonwealth v. Gelfgatt, 468 Mass. 512 (2014).

Entering or disclosing a passcode is different from providing physical evidence, because the act draws on the contents of the mind and is testimonial. Under Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), and Commonwealth v. Jones, 481 Mass. 540 (2019), before a court may order a person to enter a password, the Commonwealth must prove beyond a reasonable doubt that the person knows it. An officer’s request in the field is not a court order.

Courts have often analyzed unlocking a device by fingerprint or facial recognition as a physical act rather than a testimonial one. A person therefore has a practical reason to know which method secures a given device. What the police may search once they have a device is a separate question, addressed at phone and computer searches in Massachusetts. A third question, addressed at digital evidence in Massachusetts criminal cases and in the text message and phone evidence questions and answers, is whether the messages and extraction reports can then be shown to a jury.

Suppression of a Statement

The remedy for a statement taken in violation of the rules described on this page is suppression, not dismissal. A judge who allows a motion to suppress orders that the Commonwealth may not use the statement. The charge remains pending. The case continues on whatever admissible evidence is left.

A person deciding what to do next should understand the difference between suppression and dismissal. An order suppressing a statement can leave the Commonwealth unable to proceed where the Commonwealth had no case without the statement. The order can also change the plea negotiations entirely where the statement was central to the case.

A suppression order does not by itself produce a dismissal. The related question of evidence seized through an unlawful stop or search is treated at illegal searches and seizures in Massachusetts. The stages of the case are set out at Massachusetts criminal process and arraignment in Massachusetts.

General Guidance

This page gives general information about how the right to remain silent works. The page is not advice about any particular case. The right course in a particular case depends on facts that a lawyer needs to hear.

• A person who is stopped or questioned may say that they are invoking the right to remain silent and want to speak with a lawyer, and then stop answering investigative questions.
• Producing a license and registration, or identifying oneself where the law requires it, is not a waiver.
• Declining to give a passcode in the field is not a crime, because an officer’s request is not a court order.
• Statements to people who are not police officers are generally admissible. Jail calls are recorded.
• In a domestic violence case, a defendant who contacts the complaining witness can face a new charge.
• A person who has a criminal case and a 209A restraining order or 258E harassment prevention order hearing pending at the same time decides whether to testify at the civil hearing with counsel who is looking at both.

Motions to Suppress Statements in the Massachusetts Courts

Motions to suppress statements are heard in the District Court, the Boston Municipal Court, or the Superior Court in which the case is pending. Serpa Law Office files and argues these motions throughout Greater Boston, including the Quincy, Dedham, Cambridge, Somerville, and Woburn District Courts and the Boston Municipal Court.

The strength of a motion to suppress a statement depends on what happened in the first minutes of the encounter. The relevant facts include where the questioning occurred, what was said before any warning, whether an attorney called the station, and, for a young client, whether an interested adult was ever involved. Defense counsel needs to reconstruct the events of the encounter early in the case in order to bring the motion.

A person who has been questioned or arrested should stop discussing the case and call a lawyer. Call Serpa Law Office at 617.936.0201 for a free and confidential consultation. Boston office: 20 Park Plaza #400A. Quincy Office: 500 Victory Road, Suite 400A.

Chapter 163 and Noncitizen Defendants

Chapter 163 of the Acts of 2026 added five rules that affect a noncitizen who is questioned by police, charged with a crime, held in a correctional facility, or seeking a T or U visa certification as a crime victim. Two of those rules govern what an officer may ask and what the person may decline to answer.

1. Questions about status. M.G.L. c. 147, § 64 provides that immigration or citizenship status is directly material only when it is necessary to establish an element of a Massachusetts criminal offense. Status is not directly material to credibility, to cooperation, or to general information gathering.
2. Notice of counsel at intake. Beginning November 3, 2026, M.G.L. c. 127, § 87B requires state and county correctional facilities, houses of correction, and prerelease centers holding detained people to give each person written notice at intake. The notice must be in that person’s primary language and must state the right to counsel and the right to decline interviews by state or federal law enforcement and consular officials. The notice requirement does not apply to courthouses.
3. Civil arrests at the courthouse. Beginning November 3, 2026, M.G.L. c. 221D prohibits a civil arrest inside a Massachusetts courtroom. Anywhere else in the courthouse or on its grounds, an officer may make a civil arrest only after showing a judicial warrant or order to a judge sitting in that courthouse for prompt review. An ICE administrative warrant, removal warrant, notice to appear, or civil detainer is not a judicial warrant.
4. A final order of removal at bail. M.G.L. c. 276, § 58 requires a judge to take into account a final removal order, meaning a final order of deportation, as a factor in assessing risk of flight when setting bail. Every statutory condition must be met first, including that the alleged acts involve a felony under Massachusetts law. Immigration status alone, a detainer, or a pending immigration case does not satisfy the statutory language about a final order of removal.
5. T and U visa certifications. Beginning November 3, 2026, M.G.L. c. 258F requires a Massachusetts district attorney’s office, police department, or other certifying entity to decide a crime victim’s certification request within 45 days. The deadline is 14 business days when the applicant, counsel, or advocate certifies the applicant is in removal proceedings, faces an immigration court hearing within 45 days, or has a qualifying derivative T visa beneficiary aging out within 45 days. The entity cannot require that charges were filed or that anyone was convicted.